Harry Olstein - Page 5




                                        - 5 -                                         

          Whitehouse held title to the 28 lots, provided financing to the             
          Kramers, and received 96 percent of the net proceeds from the               
          sale of the lots, while the Kramers performed all activities                
          necessary to develop, market, and sell the lots and received 4              
          percent of the net proceeds.  During 1993 and 1994, the developed           
          lots were sold to home buyers.                                              
                                       OPINION                                        
               Respondent contends that Whitehouse's share of the 1993 and            
          1994 proceeds relating to the sale of the 28 lots was ordinary              
          income.  Petitioner contends that the proceeds were capital gain.           
          Under section 1221(1), the term "capital asset" does not include            
          property held by a taxpayer primarily for sale to customers in              
          the ordinary course of the taxpayer's trade or business.1  There            
          is no fixed formula or rule of thumb for making this                        
          determination, and each case must rest upon its own facts.  See             
          Kaltreider v. Commissioner, 255 F.2d 833, 838 (3d Cir. 1958),               
          affg. 28 T.C. 121 (1957); see also Mauldin v. Commissioner, 195             
          F.2d 714, 716 (10th Cir. 1952), affg. 16 T.C. 698 (1951).                   
              Although HJV originally acquired the Marlboro tract to build           
          single-family homes to be sold in the ordinary course of its real           
          estate development business, Whitehouse, as HJV's successor, did            


               1  All section references are to the Internal Revenue Code             
          in effect for the years in issue, and all Rule references are to            
          the Tax Court Rules of Practice and Procedure.                              




Page:  Previous  1  2  3  4  5  6  7  Next

Last modified: May 25, 2011